Divorce and Medical Records: Must I Turn Over My Records if Requested in Discovery?

Must a party to divorce turn over their medical records in response to a “Request for Production” during discovery?  It depends.

In general, production of medical records in a civil proceeding, such as divorce, is prohibited by invoking the “Physician-Patient Privilege” found in Texas Rule of Evidence 509.  The rule, as it applies to civil proceedings, provides, in relevant part that:

  1. “Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed.”1
  2. “Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and many not be disclosed.”2

The privilege is not ironclad.  There is an exception to the privilege in a civil proceeding that, in relevant part, reads as follows:

  • “Exceptions to confidentiality or privilege…in a civil proceeding [exist]…as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party’s claim or defense.”3  (emphasis added).

One example of where this exception applies if a spouse asks the Court for post-divorce spousal maintenance because the requesting spouse “is unable to earn sufficient income…because of an incapacitating physical or mental disability.”4  It must be emphasized that the requesting party is only entitled to records or communications relevant to the party’s claim or defense.  (emphasis added).  To force turnover of a complete copy of the other party’s medical records would promote the requesting party to engage is a “fishing expedition” by allowing them to browse through matters both relevant and irrelevant.  In that sense, application of the rule and the exception must be kept in balance. 

Speak with a qualified family law and divorce attorney if you have questions about the rule, exceptions or related issues.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world.  The firm specializes in Federal Civil Service and Military Divorce matters.  The firms also provides Wills and Estates and Probate services.

Note1 – Texas Rule of Evidence 509(c)(1)

Note2 – Texas Rule of Evidence 509(c)(2)

Note3 – Texas Rule of Evidence 509(e)(4)

Note4 – Texas Family Code Section 8.051(2)(a)